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2001 DIGILAW 728 (KER)

Krishnan v. State of Kerala

2001-12-07

K.PADMANABHAN NAIR

body2001
Judgment :- K. Padmanabhan Nair, J. Can a Magistrate who forwards a complaint filed by a person containing allegations of commission of an offence exclusively traible by the court of Sessions under Section 156 (3) of the Code of Criminal Procedure to the police for investigation and report take cognizance on the very same complaint and conduct an enquiry under Section 200 of the Criminal Procedure Code based on a submission made by the Investigating Officer in the court that he had stopped investigation before actual filing of the report under section 173 (2) of the Code of Criminal Procedure is the question to be decided in the proceedings. 2.Chandran, the son of the additional 2nd respondent died during the night of 17.3.1992 and the police had registered a crime No.137 of 1992 under the caption 'unnatural death' regarding the death of Chandran. Thereafter the additional second respondent filed Crl.M.P. 4890 of 1992 on 24.8. 1992 before the Judicial First Class Magistrate Court, Mavelikkara alleging that the petitioners and 4 others committed the murder of Chandran and caused disappearanace of the evidence of the commission of the offence and thereby committed the offence punishable under Sections 302 and 201 readwith Section 34 of the Indian Penal Code. On 24.8.1992 itself the learned Magistrate instead of taking cognizance on the complaint forwarded the same to the Circle Inspector of Police for Investigation and report under Section 156 (3)of the Criminal Procedure Code. On receipt of the complaint the Mavelikkara police registered crime No. 368 of 1992 against the petitioners and the 4 others and the first information report was forwarded to the learned magistrate. On 21.10.1992 the second respondent filed a petition before the learned Magistrate praying that a direction may be issued to the investigating officer to complete the investigation and file report as expeditiously as possible. On 19.6.1993 the Circle Inspector of Police appeared before the Magistrate and reported that the case was referred but the report under Section 173 (2) of Criminal Procedure Code was not filed in court. On that day the complainant and two witnesses were present. The learned Magistrate took cognizance and recorded their statements and the case was posted to further evidence. Subsequently the records such as First Information Report, inquest report, and postmortem certificate etc. On that day the complainant and two witnesses were present. The learned Magistrate took cognizance and recorded their statements and the case was posted to further evidence. Subsequently the records such as First Information Report, inquest report, and postmortem certificate etc. were called for from the office of Sub Divisional Magistrate, Chegannur and the statement of the doctor who conducted autopsy was also recorded. Even though the Circle Inspector of Police had stated before the Magistrate that he had referred the matter, the report under section 173(2) was actually signed on 22.9.1993 and filed before the magistrate only on 3.2.1994. The copy of the proceedings paper of the court below shows that the learned magistrate after recording the statements of Cws1 to 4 heard the matter in part on 27.7.1996 and thereafter on 25.9.1996and by order dt.3.10.1996 the learned magistrate found that no prima facie case was disclosed against A3 to A5 but a prima facie case was brought out against A1, A2 and A6 and the complaint was registered as C.P.13 of 1996 and summons were issued to the petitioners and A6 calling upon them to appear before the Magistrate on 2.11.1996. The petitioners who are A1 and A2 never appeared before the Magistrate and so the learned Magistrate had ordered non-bailable warrant against them and at that stage the petitioners approached this court by filing this petition. 3. The main ground of attack against the proceedings is that even though the learned Magistrate forwarded the complaint to the Circle Inspector of Police Mavelikkara for investigation and report under Section 156(3), without waiting for the actual filing of the final report he examined the complainant and witnesses present in the court under Section 200 of Criminal Procedure Code and took cognizance on the complaint without persuing the final report and connected documents. According to counsel for the petitioner on the date on which the learned Magistrate recorded the evidence of CWs 1 to 3 there was no materials available before him as the matter was under investigation by the police. According to counsel for the petitioner on the date on which the learned Magistrate recorded the evidence of CWs 1 to 3 there was no materials available before him as the matter was under investigation by the police. According to the petitioners since the magistrate had forwarded the complaint to the police under Section 156(3) he gets jurisdiction to proceed under Section 156 (3) he gets jurisdiction to proceed under Section 200 of the Criminal Procedure Code only after the receipt of the report under Section 173 (2) and hence he ought to have waited for the filing of the final report. In D.Lakshminarayana v. V.Naryana (A.I.R.1976 SC 1672) the Supreme Court has held that the Magistrate has power to forward the complaint to police for investigation under section 156 (3) even if the same discloses an offence exclusively triable by the Sessions Court. In H.S. Bains V. State (U.T.Chandigarh) (A.I.R. 1980 SC 1883) the Supreme Court has held as follows:- A Magistrate who on receipt of a complaint, orders an investigation under Section 156 (3) and receives a police report under Section 173 (1), may, thereafter, do one of three things:(1)he may decide that there is no sufficient ground for proceeding further and drop action: (2) he may take cognizance of the offence under Section 190 (1) (b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report; (3) he may take cognizance of the offence under Sec.190 (1) (a) on the basis of the original compliant and his witnesses under oath the complainant and his witnesses under section 200. If he adopts the third alternative , he may hold or direct an inquiry under Section 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process, as the case may be". Relying on the principle laid down in H.S. Bains case (Supra) learned counsel appearing for the petitioners vehemently argued that once the Magistrate orders an investigation under Section 156(3) he can proceed to conduct an enquiry under Section 200 only after receipt of the final report under Section 173 (2). Relying on the principle laid down in H.S. Bains case (Supra) learned counsel appearing for the petitioners vehemently argued that once the Magistrate orders an investigation under Section 156(3) he can proceed to conduct an enquiry under Section 200 only after receipt of the final report under Section 173 (2). 4.The only question to be decided in this case is whether the learned magistrate has jurisdiction to take cognizance and record evidence of the complainant and witnesses under Section 200 before 8.2.1994 the date on which the report Under Section 173(2) was filed, after ordering an investigation under Section 156(3) of Criminal Procedure Code. Accoring to the petitioners if the learned Magistrate had waited for the final report and perused the same he would have taken a decision not to proceed under Section 200 of the Crl. Procedure Code. It is argued that the action of the Magistrate recording the evidence of the complainant and witnesses is without jurisdiction the whole proceedings is vitiated and laible to be quashed. 5. On receipt of a complaint a Magistrate has several courses open to him. In a case exclusively triable by Sessions he may take cognizance and proceed to record the statements of the complainment and witneses under Section 200. He can also order investigation under Section 156 (3) instead of taking cognizance of the offence. The police will then investigate and submit a report under Section 173 (2). Once the Magistrate takes cognizance and proceed to conduct an enquiry under Section 200 thereafter he cannot revert back to the pre-cognizance stage of Section 156(3). Even though the Magistrate may have not power to direct the police to stop the investigation or to conduct a parallel enquiry under Secion 200 after forwarding the complaint under Section 156 (3) when the police officer take a decision to close the investigation he can take cognizance and proceed to conduct the enquiry under Section 200 of the Criminal Procedure Code. It is also well settled position of law that the Magistrate is not bound by the conclusions drawn by the police. He can take cognizance of the offence on the basis of the complaint originally submitted to him. ( In H.S. Bains v. State (U. T. Chandigarh) (A.I.R.1980 SC 1883) supra it was held as follows:- "…. It is also well settled position of law that the Magistrate is not bound by the conclusions drawn by the police. He can take cognizance of the offence on the basis of the complaint originally submitted to him. ( In H.S. Bains v. State (U. T. Chandigarh) (A.I.R.1980 SC 1883) supra it was held as follows:- "…. The mere fact that he had earlier ordered an investigation under Section 156 (3) and received a report under Section 173 will not have the effect of total effacement of the complaint and therefore the Magistrate will not be barred from proceeding under Sections 200, 203 and 204…." In Raghavendra Bharati Swami v. The State of Karnataka (1979 Crl.L.J. NOC 13 (Kant.)) a single bench of the Karnataka High Court has held as follows:- "….. A reading of Ss. 202 and 203 makes it clear that the materials collected by the police during investigation under S.156(3) are excluded from consideration by the Magistrate when taking cognizance of an offence and issuing process to the accused. Section 156 (3) does not provide any indication as to under what circumstances a Magistrate may consider it fit to refer a complaint for investigation by the police…." In State of Haryana v. Bhajan Lal (1992 Supp.(1) SCC 335) it was held as follows:- "….the courts cannot have control and have no power to stifle or impinge upon the proceedings in the investigation so long as the investigation proceeds in compliance with the provisions relating to investigation and that it is only in a case wherein a police officer decides not to investigate an offence, the concerned Magistrate can intervene and either direct an investigation or in the alternative, if he thinks fit, he himself can, at once proceed or depute any Magistrate subordinate to him to proceed to hold a preliminary inquiry into or otherwise to dispose of the case in the manner provided in the Code". When the Magistrate orders investigation by police on receipt of a complaint and forward the same to the police the complaint transforms itself into a report given in writing within the meaning of Section 154 and is used as a first information statement. But it has to be noted that even when the police files a report under Section 173 (2) it will not have the effect of total effacement of the complaint. But it has to be noted that even when the police files a report under Section 173 (2) it will not have the effect of total effacement of the complaint. Therefore the magistrate is not debarred from proceeding under Section 200, 203 or 204 on the very same complaint and it is not necessary to insist for filing a fresh complaint. In the petition itself it is admitted that on receipt of the complaint the same was forwarded by the magistrate to the police and the police had registered a crime and forwarded the first information report to the court. Copy of the First Information Report produced by the petitioner shows that the complaint forwarded to the police for investigation by the Magistrate was treated as first information statement and returned to the court along with the first information report. The records produced by the petitioners themselves shows that the 4th respondent filed a petition before the Magistrate on 21.10.1992 for issuing a direction to the Circle Inspector of Police, Mavelikkara to complete the investigation and file the report under Section 173 (1) as expeditiously as possible. Since no final report was filed the learned magistrate had directed the Circle Inspector of Police to appear before him. The Circle Inspector had appeared before the Magistrate on 19.6.1993 and reported that the case was referred meaning the investigation was completed. The proceedings of the Magistrate on 19.6.1993 produced as Annexure-A reads as follows:- 19.6.93:- C.I reported that the case has been referred. Refer report not received. Complaint and two witnesses present. Examined as CW 1 to 3. For further evidence posted to 3.7.93". Copy of the report filed under Section 173 (2) produced and marked as Annexure-D shows that it bears the date 22.9.1993 but the same was received in court on 3.2.1994. The grievance of the petitioners is that had the Magistrate waited for the actual receipt of the report he may not have taken a decision to proceed under Section 200 in view of the records available. In H.S. Bains 'Case (Supra) the Supreme Court held thatafter ordering enquiry under Section 156(3) Magistrate can proceed under the original complaint ignoring the report and documents submitted by the police under Section 173 (2). In H.S. Bains 'Case (Supra) the Supreme Court held thatafter ordering enquiry under Section 156(3) Magistrate can proceed under the original complaint ignoring the report and documents submitted by the police under Section 173 (2). Even though the report was filed in court only on 3.2.1994, the police had stopped investigation of the case and submitted before the court that the case was referred as false as early as on 19.6.1993. When the learned Magistrate took cognizance and conduct the enquity under Section 200 the investigation of the case by the police was over. Since the Magistrate is entitled to take cognizance without looking into the report filed under Section 173 (2) he has got every power to take cognizance on the complaint which is treated as the First Information Statement by the police when it was reported by the investigating officer that the police had stopped investigation. It was not at all necessary to wait for the actual filing of the report under Section 173(2). So there is absolutely no merit in the argument raised by counsel for the petitioners that the action of the Magistrate is without jurisdiction and the entire proceedings are liable to be quashed. 6. Even assuming that the action of the Magistrate conducting an enquiry under Section 202 before the actual receipt of the report is irregular, the proceedings are not liable to quashed in view of the provisions contained in Secion 465 of the Crl. Procedure Code. Section 465 (1) of the Crl. Procedure Code reads as follows:- "465. Finding or sentence when reversible by reason of error, omission or irregularity .- (1) subject to the provisions hereinbefore contained, no finding , sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby. In state of M.P. v. Bhooraji and others(2001 SCC (Cri) 1373) it was held as follows:- 15. In state of M.P. v. Bhooraji and others(2001 SCC (Cri) 1373) it was held as follows:- 15. A reading of the section makes it clear that the error, omission or irregularity in the proceedings held before or oduring the trial or in any enquiry were reckoned by the legislature as possible occurrences in criminal courts. Yet the legistlaure disfavoured axing down the proceedings or to direct repetition of the whole proceedings afresh. Hence, the legislature imposed a prohibition that unless such error, omission or irregularity as occasioned " a failure of justice" the superior court shall not quash the proceedings merely on the ground of such error, omission or irregularity". The Apex Court has considered the meaning of the words 'failure of justice'.There is nothing on record to show that any 'failure of justice' had occasioned in this case merely because the leaned magistrate conducted an enquiry under Section 200 before the receipt of the report. 7. The facts discussed above shows that the learned Magistrate did not commit any illegality. Even assuming that he committed an irregularity, that will not vitiate the trial. In State of Haryana v. Bhajan Lal(1992 Supp(1) SCC 335) the Apex court after an exhaustive survey of the case law on the point held that the power of quashing criminal proceedings should be exercised very sparingly and with circumspection that too in the rarest of rare cases. In M.N. Damani v. S.K. Sinha and others ((2001)5 SCC 156) the Apex Court has held as follows:- " For deciding whether the criminal proceedings should be allowed to continue or the same should be quashed, two aspects are to be satisfied: (1) whether the uncontroverted allegations, as made in the complaint , prima facie establish the offence, and (2) whether it is expedient and in the interest of justice to permit is prosecution to continue". The allegations leveled against the petitioner in the complaint prima facie establish an offence and so the proceedings are not liable to be quashed and the Criminal Miscellaneous Case is only to be dismissed. In the result, the Criminal Miscellaneous Case is dismissed.